January 14, 2010

In a 5-4 per curiam opinion, the Supreme Court today effectively shut down any broadcasting of the trial in Perry v. Schwarzenegger beyond closed circuit transmission to other rooms in the federal courthouse in San Francisco where the trial is taking place. In Hollingsworth v Perry, the Court issued a stay based on two grounds: (1) that District Court Judge Vaughn Walker failed to followed the correct procedures in deciding to allow the broadcasts; and (2) that there was a likelihood of irreparable harm to defense witnesses who expressed fear of harassment by gay marriage supporters if their testimony was broadcast.

This decision in and of itself means very little, because it turned on a fairly technical point: the Court found that there was an insufficient notice and comment period allowed after the proposal was made to change local court rules on broadcasting. The portion of Judge Walker's order authorizing the posting of video on YouTube was withdrawn before today's ruling, so the opinion did not address the YouTube issue. The dissent by Justice Breyer (joined by Justices Stevens, Ginsburg and Sotomayor) chided the majority for micromanaging how lower courts decide whether to permit cameras in the courtroom, despite the absence of any federal law that mandates what the trial courts do on this question.

The more interesting part of the opinion was the Court's willingness to find a significant risk of irreparable harm (the standard for an injunction) in the press clips about post-Prop 8 demonstrations and boycotts; these clips were filed as part of the record by Prop 8 defenders. The Court held that even if the procedural irregularity in adopting the new rule had not occurred, "questions would still remain about ... allow[ing] broadcasting of this particular trial, in which several of the witnesses have stated concerns for their own security. ... This case is therefore not a good one for a pilot program" that permits webcasting.

Meanwhile, there is another case pending before the Court - Doe #1 v. Reed - which raises the question of whether to permit release of the names of individuals who signed a petition in support of a ballot referendum question proposing the repeal of the domestic partners/civil union law in Washington state. In October, the Court also entered a stay in that case; release of the names is now blocked until the case is fully briefed and argued.

To me, these issues are worlds apart. Preventing the webcasting of testimony by persons who have stepped forward to serve as witnesses and whose identities are already known and will in any case be subject to major publicity in such a high visibility case is not a good precedent in a system founded on the concept of open trials. The Washington state question, on the other hand, is closer: arguably those who sign ballot petitions are acting in their capacity as voters, in a system also founded on the sanctity of the secret ballot. (Alternatively, petition signers are more comparable to legislators, who also have the power to propose legislation - but that's for another post.)

What is clear from both these cases, however, is that gay marriage opponents are getting lots of mileage out of their asserted fears of harassment and intimidation. I do not agree with some of the actions taken by gay marriage supporters in the wake of Prop 8. However, a handful of incidents does not support concocting an exaggerated fear of an imagined mob of angry gay extremists bent on bullying the rest of society into conformity with "the gay agenda." The image is absurd, but anti-gay conservatives are using it quite effectively, not just in ads or on talk shows, but also in the nation's highest court.